Citation Nr: 0424238
Decision Date: 08/31/04 Archive Date: 09/07/04
DOCKET NO. 97-28 002 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to increased evaluation for degenerative
joint disease of the cervical spine, currently evaluated as
10 percent disabling.
2. Entitlement to an increased evaluation for right carpal
tunnel syndrome, currently evaluated as 10 percent disabling.
3. Entitlement to service connection for left carpal tunnel
syndrome.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jason R. Davitian, Counsel
INTRODUCTION
The veteran served on active duty from May 1977 to July 1994,
with unverified prior active duty.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from a January 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office in Waco,
Texas (RO), which denied the benefits sought on appeal.
Thereafter, the veteran submitted a timely notice of
disagreement, in May 1997, and a timely substantive appeal,
in July 1997. The veteran's substantive appeal included a
reference to carpal tunnel syndrome of the left hand.
The Board notes that a February 1998 rating decision denied
service connection for left carpal tunnel syndrome. The
veteran did not submit a notice of disagreement. Thereafter,
an October 2000 rating decision held that the veteran had not
submitted new and material evidence to reopen a claim for
service connection for arthritis and carpal tunnel syndrome
of the left hand.
Despite the October 2000 rating decision, the Board finds
that the issue of entitlement to service connection for left
carpal tunnel syndrome is properly before it. The veteran's
Notice of Disagreement and substantive appeal with regard to
the July 1997 rating decision were timely. Further, in light
of the fact that the veteran's substantive appeal addressed
carpal tunnel syndrome of the left hand, the Board finds that
the veteran's original claim was for service connection for a
disability of the left hand and arm, to include arthritis or
carpal tunnel syndrome. As a result, the fact that she did
not respond to the February 1998 denial of service connection
for left carpal tunnel syndrome is without legal
significance.
The issues of entitlement to an increased evaluation for
degenerative joint disease of the cervical spine and an
extraschedular rating for right carpal tunnel syndrome are
addressed in the REMAND portion of the decision below; these
issues are REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The competent medical evidence indicates that the
veteran's right carpal tunnel syndrome is manifested by
complaints of pain and numbness with some slight limitation
of motion, but not ankylosis of the right wrist; it does not
result in disability consistent with more than mild
incomplete paralysis of the median nerve.
3. The competent medical evidence shows that the veteran's
left carpal tunnel syndrome began during active service.
CONCLUSIONS OF LAW
1. Entitlement to a schedular evaluation in excess of 10
percent for right carpal tunnel syndrome is not warranted.
38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a,
Diagnostic Code 8515 (2003).
2. Entitlement to service connection for left carpal tunnel
syndrome is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103,
5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.304 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA has a duty to assist the appellant in the development of
facts pertinent to her claim. On November 9, 2000, the
President signed into law the VCAA, Pub. L. No. 106-475, 114
Stat. 2096. This law redefines the obligations of VA with
respect to the duty to assist and includes an enhanced duty
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
First, VA has a duty to notify the appellant of any
information and evidence needed to substantiate and complete
a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b)
(2003). Information means non-evidentiary facts, such as the
claimant's address and Social Security number or the name and
address of a medical care provider who may have evidence
pertinent to the claim. See 66 Fed. Reg. 45620, 45,630
(August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2003). Second,
VA has a duty to assist the appellant in obtaining evidence
necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159(c) (2003).
The appellant filed her claim before the enactment of the
VCAA. The regulations issued to implement the VCAA are
expressly applicable to "any claim for benefits received by
VA on or after November 9, 2000, the VCAA's enactment date,
as well as to any claim filed before that date but not
decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug.
29, 2001). See also VAOPGCPREC 7-2003. Therefore compliance
with the VCAA is required.
As discussed in more detail below, sufficient evidence is of
record to grant the veteran's claim for service connection
for left carpal tunnel syndrome. Therefore, no further
development is needed with regard to this issue. As to the
claim for a higher schedular rating for right carpal tunnel
syndrome, the Board finds that VA's duties to the appellant
under the VCAA have been fulfilled with regard to this issue.
(As noted above, the issues of an extraschedular rating for
this disability and increased rating for degenerative joint
disease of the cervical spine are addressed in the remand
below.) The Board concludes that discussions in the January
1997 rating decision on appeal, the May 1997 statement of the
case (SOC) and a supplemental statement of the case (SSOC)
dated in April 2003 adequately informed her of the
information and evidence needed to substantiate her claim for
a higher scheduler rating for right carpal tunnel syndrome.
The April 2003 SSOC and an October 2003 VCAA notice letter
informed her of the VCAA's implementing regulations,
including that VA would assist her in obtaining government or
private medical or employment records, provided that she
sufficiently identified the records sought and submitted
releases as necessary. The Board finds that these documents
show that the appellant was notified of the evidence needed
to substantiate her claim for a higher scheduler rating for
right carpal tunnel syndrome and the avenues through which
she might obtain such evidence, and of the allocation of
responsibilities between herself and VA in obtaining such
evidence. See Quartuccio v. Principi, 16 Vet. App. 183
(2002).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II, which replaced the opinion in Pelegrini v. Principi, 17
Vet. App. 412 (2004)), the U.S. Court of Appeals for
Veterans' Claims (Court) held that a VCAA notice must be
provided to a claimant before the "initial unfavorable
[agency of original jurisdiction (AOJ)] decision on a
service-connection claim." In this case, VCAA notice was
not provided to the veteran before the January 1997 rating
decision on appeal; however, the rating decision on appeal
was entered before the enactment of VCAA. Obviously, VA
could not have informed the veteran of law that did not yet
exist. Moreover, in Pelegrini II, the Court also made it
clear that where, as in this case, notice was not mandated at
the time of the initial RO decision, the RO did not err in
not providing such notice complying with 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b)(1) because an initial RO
decision had already occurred. Also see O.G.C. Prec. Op. No.
7-2004.
As noted above, the April 2003 SSOC and the October 2003 duty
to assist letter, the RO provided notice to the claimant
regarding what information and evidence is needed to
substantiate the claims, as well as what information and
evidence must be submitted by the claimant, what information
and evidence will be obtained by VA, and the need for the
claimant to submit any evidence in her possession that
pertains to the claim. The veteran has not identified any
outstanding medical records or indicated that she was in the
process of obtaining such records.
The Board further notes that, in order to comply with
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim(s)." This new "fourth element" of the notice
requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1).
In this case, although the VCAA notices provided to the
appellant do not contain the "fourth element," the Board
finds that the appellant was otherwise fully notified of the
need to give to VA any evidence pertaining to her claim. In
the March 2004 duty to assist letter to the veteran, the RO
requested that "[i]f there is any other evidence or
information that you think will support your claim, please
let us know."
VCAA only requires that the duty to notify is satisfied, and
that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Sutton v. Brown, 9 Vet. App. 553 (1996);
Bernard v. Brown, 4 Vet. App. 384 (1993). In the case of the
appellant's claim, because each of the four content
requirements of a VCAA notice has been fully satisfied, any
error in not providing a single notice to the appellant
covering all content requirements is harmless error.
Moreover, in a recent opinion, VA General Counsel held that
section 5103(a) does not require VA to seek evidence from a
claimant other than that identified by VA as necessary to
substantiate the claim. See VAOPGCPREC 1-2004.
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A. VA has obtained all indicated service and post-
service medical records.
As to any duty to provide an examination and/or seek a
medical opinion for the veteran's claim, the Board notes that
in the case of a claim for disability compensation the
assistance provided to the claimant shall include providing a
medical examination or obtaining a medical opinion when such
examination or opinion is necessary to make a decision on the
claim. An examination or opinion shall be treated as being
necessary to make a decision on the claim if the evidence of
record, taking into consideration all information and lay or
medical evidence (including statements of the claimant)
contains competent evidence that the claimant has a current
disability, or persistent or recurring symptoms of
disability; and indicates that the disability or symptoms may
be associated with the claimant's act of service; but does
not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R.
§ 3.159(c)(4).
The Board notes that in October 1997 and January 2003, VA
conducted medical examinations with regard to the veteran's
right carpal tunnel syndrome. The Board finds that the
relevant medical evidence of record, to include the reports
of these examinations, contains sufficient detail to make a
decision on this claim. Thus, there is no duty to provide
additional examination with regard to this issue. 38 U.S.C.
§ 5103A(d); 38 C.F.R. § 3.159(c)(4).
The Board further notes that during the pendency of her claim
the appellant has been afforded opportunities to submit
information relating to any additional evidence that may be
available. She has failed to identify any sources of
additional outstanding evidence or indicate that she was in
the process of obtaining additional evidence. It is clear
that there is no additional relevant evidence that has not
been obtained and that the appellant desires the Board to
proceed with its appellate review. See Quartuccio, supra.
Based on the foregoing, the Board finds that, in the
circumstances of the veteran's claim, any additional
development or notification would serve no useful purpose.
See Soyini, supra (strict adherence to requirements in the
law does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
claimant are to be avoided); Wensch v. Principi, 15 Vet. App.
362, 368 (2001) (when there is extensive factual development
in a case, reflected both in the record on appeal and the
Board's decision, which indicates no reasonable possibility
that any further assistance would aid the appellant in
substantiating his or her claim, the VCAA does not apply).
The Board finds that the duty to assist and duty to notify
provisions of the VCAA have been fulfilled to the extent
possible with regard to her claim. Thus, no additional
assistance or notification to the appellant is required based
on the facts of the instant case, there has been no prejudice
to the appellant that would warrant a remand, and her
procedural rights have not been abridged. Bernard, supra.
Factual Background
The veteran maintains that the current 10 percent evaluation
assigned for her right carpal tunnel syndrome does not
adequately address the severity of that disability. During a
September 1997 hearing at the RO, she testified that her
carpal tunnel syndrome causes numbness and difficulty
driving, carrying things and cooking. She said that she took
muscle relaxers and had dropped things while working at her
job providing care for an elderly man. She also maintains
that her current disability of the left arm and hand, either
arthritis or carpal tunnel syndrome, began during service.
The record before the Board contains service medical records
and post-service medical records, which will be addressed as
pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49
(2001) (a discussion of all evidence by the Board is not
required when the Board has supported its decision with
thorough reasons and bases regarding the relevant evidence).
The veteran's service medical records show that she received
a diagnosis and treatment for right carpal tunnel syndrome.
In March 1992, the veteran complained of swelling in both
hands and as a result was excused from doing push-ups. In
June 1993, she complained of swollen right and left hands for
two days, along with tingling and inability to squeeze a
towel. On her March 19994 separation report of history, the
veteran complained of unspecified swollen fingers, arm and
hand. The report of the separation medical examination
provides that her upper extremities were normal on clinical
evaluation and identifies no pertinent defects or diagnoses,
including the earlier diagnosed right carpal tunnel syndrome.
VA medical records include a diagnosis of bilateral carpal
tunnel syndrome in November 1995 and show that the veteran
underwent surgical release of the right and left carpal
tunnels in August and November 1996, respectively.
The report of an October 1997 VA examination provides that
the veteran gave a history of surgery for carpal tunnel
syndrome. The treatment helped for about the first six
months. She reported that her fingers and hands stay tight
and that it was difficult to grip. She described pain along
the dorsal radial side of the thumb and along the dorsal
aspect of the middle finger. The whole hand went to sleep,
or numb, at night. All fingers and thumb had a full arc of
movement. There was no swelling or inflammatory change about
any of the joints of the hand. The wrist palmar flexion was
to 80 degrees and the dorsiflexion was to 45 degrees
bilaterally. There was no swelling about the carpal tunnel
and the incisions appeared to be well healed. Radiographic
reports showed normal left hand and wrist joint. The
pertinent diagnosis was status-post carpal tunnel syndrome,
bilateral; no signs of hand-finger arthritis at this time.
VA treatment records dated in September 1998 indicate that
the veteran complained of pain, stiffness and numbness of the
right hand. In 1999, she was provided instructions for
Thera-Band Strips exercises. She was given an
Employment/School Document indicating that while at school
she should wear bilateral wrist splints when writing or
performing computer work. She was to be given a 5 minute
break with every 15 minutes of writing or typing.
In a May 1998 statement, the veteran's ex-employer wrote that
the veteran's carpal tunnel syndrome in her hands had
prevented her from performing many of her job duties.
The report of an April 2000 EMG provides an assessment that
the only documented abnormality was prolongation of mid palm
(median vs. ulnar nerve); it is unclear if this was residual
from the surgery or an early finding. The clinician opined
that, as the veteran's complaints were not all consistent
with carpal tunnel syndrome, it could be from another cause.
The report of a January 2003 VA examination provides that the
claims file was not available and that an addendum would be
made when it was available. The examiner did have very
extensive computerized treatment records which he reviewed.
They showed that in 2000 and 2001, the veteran was seen by
physical medicine and rehabilitation for hand pain.
The veteran's history was primarily thenar eminence pain and
a C5-6 lateral hand pain bilaterally, that involved the
median nerve distribution. The intensity of the veteran's
pain was rarely even troublesome and never severe, but about
once a week the pain became more prominent. The veteran was
not incapacitated, worked from 1995 to 1999 with the pain
patterns noted above, and then had to stop work due to other
physical problems. She was right-hand dominant.
There was no motor dysfunction in either upper extremity. The
discomfort in her hands was in the distribution of the median
nerve in the palm, thumb, forefinger, middle finger, and in
the lateral edge of the thumb assembly and involving the
thumb and the forefinger. Dorsiflexion was to 70 degrees
right and 65 degrees left, palmer flexion was to 80 degrees
bilaterally, radial deviation was to 14 degrees bilaterally
and ulnar deviation was to 22 degrees bilaterally. The
examiner summarized that the veteran's physical examination
was only slightly limited in the right wrist and was entirely
normal in the hands with subjective mild pain and no definite
disability. The examiner commented that the veteran
apparently believed that the disability rating currently in
effect for her right carpal tunnel syndrome was inadequate
solely because she had a continuation of the symptoms. The
examiner noted that the examination did not reveal any
significant disability or high-grade limitation of range of
motion.
The pertinent impression was probable degenerative joint
disease at the C5-6 and C6-7 levels in the cervical spine;
pain pattern, beginning in the neck, going down the into the
shoulder, each arm and each forearm in a C5 and C6
distribution pattern, subjective only, mild, non-disabling
and with no motor deficit; status-post bilateral carpal
tunnel release surgery, through the palm of each hand, in
1996 with improvement for about 6 months, followed by what
appeared by the current examination to have been a rather
mild recurrence of symptoms with persistence for the last 6
years; and the recurrence pattern was the median nerve, which
did fit with the carpal tunnel compression syndromes, and C5
and C6, which fit with a presumptive diagnosis of
degenerative joint disease in the cervical spine.
Physical examination of the hands and forearms revealed
healed 6-cm scars in the vertical creases at the proximal end
of the palm on each hand. The scars had no keloid or
evidence of breakdown or deep adhesions, and were very
healthy. The veteran had normal motor function in both
thumbs and all fingers. She had a limited grip of three over
a normal of five, equal in each hand. All of her symptoms,
with the exception of cervical spine limitation of motion,
were entirely subjective.
In a February 2003 addendum, the same VA examiner observed
that he had reviewed the veteran's claims file, set forth a
review of the relevant medical history, and concluded that no
additions to the January 2003 VA examination report were
needed. An addendum by another VA physician noted that the
January 2003 VA examiner had reviewed the claims file and
concluded that no other comments were needed and the
impressions and diagnoses remained the same.
Legal Analysis
Increased Evaluation
In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath, 1
Vet. App. 589, the Board has reviewed the service medical
records and all other evidence of record pertaining to the
history of the veteran's service-connected disabilities.
There is nothing in the historical record that would lead to
a conclusion that the current evidence of record is not
adequate for rating purposes.
Disability ratings in this case are determined by applying
the criteria set forth in the VA Schedule for Rating
Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.
The Board attempts to determine the extent to which the
veteran's service-connected disability adversely affects his
ability to function under the ordinary conditions of daily
life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity
in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§
4.1, 4.10.
"Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating." 38 C.F.R. § 4.7.
The veteran's carpal tunnel syndrome is evaluated as
paralysis of the median nerve under Diagnostic Code 8515.
Mild incomplete paralysis of the major median nerve warrants
a 10 percent evaluation, moderate incomplete paralysis of the
major median nerve warrants a 30 percent evaluation and
severe incomplete paralysis of the major median nerve
warrants a 50 percent evaluation. 38 C.F.R. § 4.124a
provides that the term "incomplete paralysis" indicates a
degree of lost or impaired function substantially less than
the picture for complete paralysis given with each nerve,
whether due to varied level of the nerve lesion or to partial
regeneration. When the involvement is wholly sensory, the
rating should be for the mild, or at most, moderate degree.
38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves.
In addition, disability of the musculoskeletal system is
primarily the inability, due to damage or infection in the
parts of the system, to perform the normal working movements
of the body with normal excursion, strength, speed,
coordination and endurance. It is essential that the
examination on which ratings are based adequately portrays
the anatomical damage, and the functional loss, with respect
to all these elements. The functional loss may be due to
absence of part, or all, of the necessary bones, joints and
muscles, or associated structures, or to deformity,
adhesions, defective innervation, or other pathology, or it
may be due to pain, supported by adequate pathology and
evidenced by visible behavior of the claimant undertaking the
motion. Weakness is as important as limitation of motion,
and a part which becomes painful on use must be regarded as
seriously disabled. 38 C.F.R. §§ 4.40, 4.45 (1997). See
Deluca v. Brown, 8 Vet. App. 202 (1995).
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claim for an evaluation in excess of 10 percent for
right carpal tunnel syndrome.
In so finding, the Board recognizes the veteran's complaints
of pain and numbness, as well as her employer's statement
that the veteran's unspecified carpal tunnel syndrome
prevented her from performing all of her job duties. This
evidence is probative, as lay testimony is competent as long
as it remains centered upon matters within the knowledge and
personal observations of the witness. See Layno v. Brown, 6
Vet. App. 465, 469 (1994). The Board also recognizes that
the VA examinations conducted in October 1997 and January
2003 indicated that the veteran's right wrist had some slight
limitation of motion but there is clearly no indication of
ankylosis.
Nevertheless, the Board finds that the preponderance of the
evidence is against entitlement to an evaluation in excess of
10 percent for the veteran's right carpal tunnel syndrome.
The report of the October 1997 VA examination provides that
there was no swelling or inflammatory change about any of the
joints of the hand or about the carpal tunnel. The report of
an April 2000 EMG provides that the veteran's complaints were
not all consistent with carpal tunnel syndrome, they could be
from another cause.
The report of the January 2003 VA examination noted that the
intensity of the veteran's pain was rarely even troublesome
and never severe, but about once a week the pain became more
prominent. There was no motor dysfunction in either upper
extremity, and the veteran had no more than slight limitation
of motion of the right wrist and was entirely normal in the
hands with subjective mild pain and no definite disability.
The examiner noted that the examination did not reveal any
significant disability or high-grade limitation of range of
motion. The veteran had normal motor function in both thumbs
and all fingers. All of her symptoms, with the exception of
cervical spine limitation of motion, were entirely
subjective.
Moreover, the Board finds it significant that the January
2003 VA examination impression indicated that the veteran's
post-surgical recurrence of carpal tunnel syndrome was rather
mild, and that the recurrence pattern of C5 and C6 did not
fit with carpal tunnel syndrome but rather with degenerative
joint disease in the cervical spine.
The Board also finds that the veteran's right carpal tunnel
syndrome does not warrant an evaluation in excess of 10
percent even with consideration of sections 4.40 and 4.45 for
functional loss, assessed on the basis of increased
limitation of motion, pursuant to the guidelines set forth in
Deluca. The veteran's complaints, symptoms and pain are
adequately addressed and contemplated by the 10 percent
evaluation. The competent medical evidence does not indicate
that the veteran's right carpal tunnel syndrome more nearly
approximates ankylosis or moderate paralysis.
In this regard, the Board observes that during the January
2003 VA examination, the veteran noted that her pain was
rarely even troublesome and never severe. Again, the
examiner noted that there was no motor dysfunction in either
upper extremity, that the veteran was only slightly limited
in the right wrist and was entirely normal in the hands with
subjective mild pain and no definite disability. The
examiner noted that the examination did not reveal any
significant disability or high-grade limitation of range of
motion. The veteran had normal motor function in both thumbs
and all fingers. All of her symptoms, with the exception of
cervical spine limitation of motion, were entirely
subjective. Examinations in recent years have shown no more
than slight limitation of motion of the right wrist. There
is no objective evidence to support a finding that the
veteran has pain or flare-ups of pain resulting in additional
limitation of function of the right wrist or hand to a degree
that would support a rating in excess of 10 percent under any
of the applicable rating criteria, nor is there any medical
evidence to show that the veteran has weakness, excess
fatigability or incoordination that results in such increased
functional limitation. Thus, the Board finds that the
veteran's current 10 percent evaluation appropriately
addresses the veteran's functional impairment and a scheduler
rating in excess of 10 percent, including consideration of
sections 4.40, 4.45 and 4.59, is not warranted. DeLuca, 8
Vet. App. at 202.
As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine is not for application, and
the claim for a schedular rating in excess of 10 percent for
right carpal tunnel syndrome must be denied. See generally
Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v.
Principi, 274 F. 3d 1361 (Fed. Cir. 2001). (The question of
whether the veteran is entitled to an extraschedular rating
for his right carpal tunnel syndrome is addressed in the
remand below.)
Service Connection
A claimant with active service may be granted service
connection for disease or disability when the evidence
reflects that the disease or disability was either incurred
in or aggravated by military service. 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. §§ 3.303, 3.304.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). The disease
entity for which service connection is sought must be
"chronic" as opposed to merely "acute and transitory" in
nature. For the showing of chronic disease in service, there
is required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time as distinguished from merely
isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. Where the fact of chronicity in
service is not adequately supported then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998)
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Based on a thorough review of the record, the Board finds
that the evidence supports entitlement to service connection
for left carpal tunnel syndrome. The Board finds it
significant that her service medical records show that she
complained of swelling in both hands and as a result was
excused from doing push-ups; complained of swollen right and
left hands for two days, along with tingling and inability to
squeeze a towel; and at separation complained of swollen
fingers, arm and hand. Although the report of the separation
medical examination is negative for left carpal tunnel
syndrome, the evidentiary weight of this fact is lessened
since the report is also negative for right carpal tunnel
syndrome even though earlier service medical records include
a diagnosis of that condition. Finally, the fact that in
November 1995 the veteran received a diagnosis of bilateral
carpal tunnel syndrome shows continuity of symptomatology.
ORDER
Entitlement to an increased scheduler rating for right carpal
tunnel syndrome, currently evaluated as 10 percent disabling,
is denied.
Entitlement to service connection for left carpal tunnel
syndrome is granted.
REMAND
A preliminary review of the record indicates that a remand is
required for the issue of entitlement to an evaluation in
excess of 10 percent for degenerative joint disease of the
cervical spine. Effective September 26, 2003, the entire
section of the rating schedule that addresses disabilities of
the spine was revised. 68 Fed. Reg. 51,454-458 (Aug. 27,
2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-
5243). There is now a General Rating Formula for Diseases
and Injuries of the Spine (for diagnostic codes 5235 to 5243,
unless 5243 is evaluated under the Formula for Rating
Intervertebral Disc Syndrome Based on Incapacitating
Episodes). The RO has not informed the veteran of these
revisions, including the General Rating Formula.
In a May 1998 statement, the veteran's ex-employer wrote that
the veteran's carpal tunnel syndrome in her hands had
prevented her from performing many of her job duties. In
exceptional cases where schedular evaluations are found to be
inadequate, the RO may refer a claim to the Under Secretary
for Benefits or the Director, Compensation and Pension
Service, for consideration of an extraschedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities. 38 C.F.R. § 3.321(b)(1) (2003). The governing
norm in these exceptional cases is a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1) (2003).
Although the Board has no authority to grant an
extraschedular rating in the first instance, it may consider
whether the RO's determination with respect to that issue was
proper. See VAOPGCPREC 6-96; Floyd v. Brown, 9 Vet. App. 88,
95 (1996) (the Board may consider whether referral to
"appropriate first-line officials" for extra-schedular rating
is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339
(1996) (the Board may affirm an RO conclusion that a claim
does not meet the criteria for submission pursuant to 38
C.F.R. § 3.321(b)(1)).
A thorough review of the claims folder in the present case
indicates that, while the RO has provided the veteran and his
representative with the extraschedular provisions of 38
C.F.R. § 3.321(b)(1) in its May 1997 Statement of the Case,
in light of the May 1998 statement from the veteran's ex-
employer, it should make a more specific finding as to
whether the facts of this case meet the criteria for
submission to the Under Secretary for Benefits or the
Director, Compensation and Pension Service for consideration
of an extraschedular rating.
In light of the foregoing, the Board finds that this case
must be REMANDED to the RO for the following action:
1. The RO should provide the veteran
notice of the most recent revisions of
the criteria for rating disabilities of
the spine, effective September 26, 2003.
See 68 Fed. Reg. 51,454-458 (Aug. 27,
2003), codified at 38 C.F.R. § 4.71a,
Diagnostic Codes 5235-5243.
2. The RO should ask the veteran to
submit any evidence or information for
the purpose of obtaining evidence
relevant to the question of whether his
carpal tunnel syndrome results in
interference with employment.
3. The RO should review the claims file
and ensure that no other notification or
development action, in addition to that
directed above, is required for the
veteran's claim. If further action is
required, the RO should undertake it
before further adjudication of the claim.
4. The RO should then consider whether a
referral of the issue of entitlement to
an extraschedular rating for the
veteran's right carpal tunnel syndrome to
the Chief Benefits Director or the
Director, Compensation and Pension
Service for the assignment of an
extraschedular rating under 38 C.F.R. §
3.321(b)(1) is warranted.
5 Thereafter, the RO should readjudicate
the veteran's claim for entitlement to an
evaluation in excess of 10 percent for
degenerative joint disease of the
cervical spine and an extraschedular
rating for right carpal tunnel syndrome.
If any part of the decision is adverse to
the veteran, she and her representative
should be provided an SSOC. A reasonable
period of time for a response should be
afforded.
Thereafter, subject to current appellate procedure, the case
should be returned to the Board for further consideration, if
otherwise in order. No action is required of the appellant
until she is otherwise notified by the RO. By this action,
the Board intimates no opinion, legal or factual, as to any
ultimate disposition warranted in this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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